Thursday, July 1, 2010

Marshall, Kagan, and Martin Luther King

Republican senators this week pressed Supreme Court nominee Elena Kagan on the degree to which her views mirror those of her mentor Justice Thurgood Marshall, whom Kagan clerked for in 1987-88.

You might have thought Marshall himself was before the Senate. Sen. John Kyl of Arizona opined in his opening statement Monday that Marshall's judicial philosophy "is not what I would consider to be mainstream." Sen. Jeff Sessions of Alabama concurred, calling the landmark civil rights-lawyer-turned-judge "a well-known activist."

Kagan reminded the senators that if confirmed "you will get Justice Kagan. You won't get Justice Marshall."

There's an irony here. While Kagan and Marshall surely have important differences, there is something they have in common, but it's not what Kagan's Republican questioners have in mind. During confirmation hearings, both were criticized not only for their own ideas, but for those of another.

5 comments:

While Senate Judiciary Committee Republicans attacked Marshall, their real target was President Obama. These Senators did not attack Brown v. Board of Education decided unanimously in 1954 (just as I was finishing law school). Nor will they dare to do so, at least openly; in fact they praise Brown and denigrate Plessy v. Ferguson. Would Brown have been so decided in 1954 had it not been for Marshall's efforts over the years leading to Brown challenging in the courts discrimination against African-Americans in his role as an attorney? Would the Civil Rights/Voting Acts of 1964-5 have been enacted then but for the Brown decision? Keep in mind that to counter the "deliberate speed" for enforcing Brown, Republicans led by Richard Nixon developed and effectively pursued the Republican Southern Strategy for a number of years, with remnants of the Strategy still be gamed today. Would Marshall have been the first African-American appointed to the Supreme Court but for the Brown decision? Would Justice Thomas have been appointed the second African-American but for the retirement of Justice Marshall? Would Obama have been elected in 2008 as the first African-American President but for the role of Marshall, the Brown decision, the Civil Rights/Voting Acts and the appointment of Marshall to the Supreme Court? Probably not. But the Republicans cannot directly attack President Obama on the grounds he is an African-American. Nor do they dare attack Brown and the Civil Rights/Voting Acts. No, they attack Marshall, now dead. But deep down, does anyone doubt that these attackers of Marshall some 56 years after the Brown decision are concerned with Marshall's role in the Brown decision and other events that followed leading to President Obama and focus their attacks upon him?

Thanks for your comment. My USC colleague Rebecca Brown makes a similar point in an op-ed: that attacking Marshall is a stand-in for attacking the values he stood for. I'll post a link here once Rebecca's piece is on line.

Today's WaPo (7/2/10) includes an OpEd by Thurgood Marshall, Jr.: ""Putting my father Thurgood Marshall on trial" that provides a response to the attacks.

Also, this edition of the WaPo includes an editorial:"The loss of civil rights advocate William A. Taylor." I was not aware of the role Taylor, the son of Lithuanian parents, played in the civil rights movement. Perhaps a book on his life as a civil rights lawyer is in order.

These attacks on Justice Marshall are attacks on civil rights and thus indirectly attacks on Brown v. Board of Education and what followed.

Senator Sessions made some statements at the hearing that reveal the indirect attack. Sessions does not have a problem with liberals, he says; rather, his concern is with the progressive movement going back 100 years. Thus, Sessions has in his sights Teddy Roosevelt, a Republican. That progressive movement led to trust busting; it led to the Pure Food Law; and other public benefits that perhaps were stalled by WW I. Perhaps civil rights would have progressed sooner but for WW I and what followed in the 1920s and '30s. Marshall helped fill the void of the progressives. It took too long after the Civil War and Plessy for Brown. Brown is here to stay. Sessions speaks in tongues of Nixon's Southern Strategy.

Shag, thanks so much for letting me know about the article on William Taylor. I had the good fortune of meeting him when we were both on a Lib. of Congress panel on Brown, and then he sat for an interview with me for over an hour about Thurgood Marshall and the civil rights movement. He was an important civil rights figure, but is not well known. From the article:

"Mr. Taylor wrote in his memoir, "The Passion of My Times," that he turned up for work at the Legal Defense and Education Fund fresh out of Yale Law School "with virtually no interaction with African Americans. Jackie Robinson provided my only civil rights education." But his passion for civil rights, like his passions for baseball and jazz, never waned...."

"As a young lawyer at the NAACP Legal Defense and Education Fund, he wrote the Supreme Court brief in Cooper v. Aaron, the case in which the justices insisted that the Little Rock schools be desegregated notwithstanding massive local resistance. He worked not only to pass the landmark civil rights statutes of the 1960s -- the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968 -- but to ensure their extension and rewriting in the face of hostile Supreme Court decisions in the following decades."

The rest is here: http://www.washingtonpost.com/wp-dyn/content/article/2010/07/01/AR2010070105383.html

Colby King's column in today's WaPo (7/3/10) "Civil rights loses a champeion in Bill Taylor" is a fine tribute. An obituary in the NYTimes referenced Taylor's love of jazz. There is a strong connection between jazz and civil rights that pre-dates the integration in sports that was late in coming. Ken Burns' jazz series - and book - was most revealing in this regard. And Ken's baseball series now making the PBS rounds is a reminder that sports was kind of late, but did end up making a significant contribution to civil rights. Colby King's column mentions contributors to the civil rights movement in addition to Taylor, including the role of American Jews in the civil rights movement. And in jazz there was Benny Goodman in the 1930s integrating his band with great African-American musicians. I've got some reading to do on Mr. Taylor. Thanks for your link, Mary.